Citation Nr: 0725071
Decision Date: 08/13/07 Archive Date: 08/20/07
DOCKET NO. 05-27 515 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to an initial compensable rating for bilateral
hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran served on active duty from March 1970 to March
1974 and from February 1991 to April 1991. The veteran also
was a member of the Air National Guard from January 1981 to
January 1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Milwaukee, Wisconsin.
FINDING OF FACT
The October 2004 examination results constitute Level IV
hearing on the right and Level II hearing on the left; the
March 2005 examination results constitute Level I hearing in
both ears; the January 2006 examination results constitute
Level II hearing in both ears.
CONCLUSION OF LAW
The criteria for a compensable evaluation for bilateral
hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002 &
Supp. 2006); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100
(2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2005; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2005).
A letter dated in December 2004 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The claimant was aware that it was ultimately the
claimant's responsibility to give VA any evidence pertaining
to the claim. The VCAA letter told the claimant to provide
any relevant evidence in the claimant's possession. The VCAA
letter informed the claimant that additional information or
evidence was needed to support the initial service connection
claim and asked the claimant to send the information or
evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II).
The VCAA letter did not provide notice of the type of
evidence necessary to establish a disability rating or
effective date should the claimant's claim for service
connection for bilateral hearing loss be granted. In a March
2005 rating decision, the RO granted service connection for
bilateral hearing loss and the issue on appeal concerns the
claim of entitlement to a higher evaluation for this now
service-connected disability.
Even though the VCAA letter did not include adequate notice
of what was needed to establish a disability rating and
effective date, the Board finds no prejudice to the claimant
in proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the claimant has been prejudiced thereby). In this
regard, the Board observes that the VCAA notice was properly
tailored to the application for the original request for
service-connected benefits. As stated above, the RO awarded
service connection for bilateral hearing loss in March 2005
rating decision and assigned an initial noncompensable
disability rating effective October 2004 (date of claim).
Therefore, the VCAA letter served its purposes in that it
provided section 5103(a) notice of the claimant; and its
application is no longer required because the original claim
has been "substantiated." See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
In the claimant's notice of disagreement (NOD), the claimant
took issue with the initial noncompensable disability rating
and is presumed to be seeking the maximum benefits available
under the law. Id.; see also AB v. Brown, 6 Vet. App. 35
(1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A
and 7105(d), the RO properly issued a July 2005 statement of
the case (SOC) which contained, in pertinent part, the
pertinent criteria for establishing a higher rating. See
38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the
procedural statutory requirements of 38 U.S.C.A. §§ 5104(b)
and 7105(d), as well as the regulatory requirements in
38 C.F.R. § 3.103(b), to include in a March 2006 letter. See
also Dingess/Hartman. The claimant was allowed a meaningful
opportunity to participate in the adjudication of the claims.
Thus, even though the initial VCAA notice did not address a
higher rating, subsequent documentation addressed this
matter; there is no prejudice to the claimant. See Overton
v. Nicholson, 20 Vet. App. 427, 439-444 (2006).
The claimant's pertinent post-service medical records have
been obtained, to the extent available. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. There is no indication in the record that
any additional evidence, relevant to the issue decided
herein, is available and not part of the claims file. The
claimant was also afforded VA examinations in October 2004,
March 2005, and January 2006. 38 C.F.R. § 3.159(c)(4).
There is no objective evidence indicating that there has been
a material change in the service-connected bilateral hearing
loss since the claimant was last examined. 38 C.F.R.
§ 3.327(a). The duty to assist does not require that a claim
be remanded solely because of the passage of time since an
otherwise adequate VA examination was conducted. See
VAOPGCPREC 11-95. The VA examination reports are thorough
and supported by VA outpatient treatment records. The
examination in this case is adequate upon which to base a
decision. The records satisfy 38 C.F.R. § 3.326.
As there is no indication that any failure on the part of VA
to provide additional notice of assistance reasonably affects
the outcome of this case, the Board finds that such failure
is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006).
Evaluation
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities (Rating Schedule),
which is based on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as
to which of two ratings apply under a particular diagnostic
code, the higher evaluation is assigned if the disability
more closely approximates the criteria for the higher rating.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3. The veteran's entire
history is reviewed when making disability evaluations. See
generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App.
589 (1995).
Before proceeding with its analysis of the veteran's claim,
the Board finds that some discussion of Fenderson v. West, 12
Vet. App 119 (1999) is warranted. In that case, the Unites
States Court of Appeals for Veterans Claims (Court)
emphasized the distinction between a new claim for an
increased evaluation of a service-connected disability and a
case (such as this one) in which the veteran expresses
dissatisfaction with the assignment of an initial disability
evaluation where the disability in question has just been
recognized as service-connected. VA must assess the level of
disability from the date of initial application for service
connection and determine whether the level of disability
warrants the assignment of different disability ratings at
different times over the life of the claim-a practice known
as "staged rating."
The veteran was afforded VA audiological evaluation in
October 2004. Puretone
thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
50
55
N/A
60
LEFT
55
55
N/A
60
The average in the right ear was 55 and the average in the
left ear was 56.66. Speech audiometry revealed speech
recognition ability of 72 percent in the right ear and of 84
percent in the left ear. The examiner stated that the
veteran had moderate to moderately severe sensorineural
hearing loss with moderately impaired speech recognition in
the right ear and moderate to moderately severe sensorineural
hearing loss with mildly impaired speech recognition in the
left ear.
The veteran was afforded VA audiological evaluation in March
2005. Puretone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
35
45
40
35
LEFT
45
45
50
45
The average in the right ear was 38.75 and in the left ear
was 46.25. Speech audiometry revealed speech recognition
ability of 92 percent in the right ear and of 92 percent in
the left ear. The examiner stated that the veteran had
sensorineural hearing loss in both ears.
Thereafter, the veteran contacted VA regarding hearing aids.
In January 2006, the veteran was afforded VA audiological
evaluation in March
2005. Puretone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
40
45
50
45
LEFT
50
50
55
50
The average in the right ear was 45 and in the left ear was
51.25. Speech audiometry revealed speech recognition ability
of 88 percent in the right ear and of 84 percent in the left
ear. The examiner stated that the veteran had sensorineural
hearing loss in both ears.
The veteran maintains that he has difficulty hearing as well
as understanding speech.
The veteran can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the veteran as a lay
person has not been shown to be capable of making medical
conclusions, thus, his statements regarding causation are not
competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Thus, while the veteran is competent to report what
comes to him through his senses, he does not have medical
expertise. See Layno v. Brown, 6 Vet. App. 465 (1994).
Therefore, he cannot provide a competent opinion regarding
diagnosis and causation.
However, the United States Court of Appeals for the Federal
Circuit (Federal Circuit Court) has held that lay evidence is
one type of evidence that must be considered and competent
lay evidence can be sufficient in and of itself. The Board,
however, retains the discretion to make credibility
determinations and otherwise weigh the evidence submitted,
including lay evidence. See Buchanan v. Nicholson, 451 F.3d
1331, 1335 (Fed. Cir. 2006). This would include weighing the
absence of contemporary medical evidence against lay
statements.
In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15,
2007), the Court indicated that varicose veins were a
condition involving "veins that are unnaturally distended or
abnormally swollen and tortuous." Such symptomatology, the
Court concluded, was observable and identifiable by lay
people. Because varicose veins "may be diagnosed by their
unique and readily identifiable features, the presence of
varicose veins was not a determination 'medical in nature'
and was capable of lay observation." Thus, the veteran's
lay testimony regarding varicose vein symptomatology in
service represented competent evidence.
In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July
3, 2007), the Federal Circuit Court determined that lay
evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition (noting that sometimes the
layperson will be competent to identify the condition where
the condition is simple, for example a broken leg, and
sometimes not, for example, a form of cancer), (2) the
layperson is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time supports
a later diagnosis by a medical professional. The relevance
of lay evidence is not limited to the third situation, but
extends to the first two as well. Whether lay evidence is
competent and sufficient in a particular case is a fact
issue.
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted")). See Barr.
The veteran is competent to report having decreased hearing
and that he does not understand speech well. He is also
credible in those statements. However, he is not competent
to provide an opinion regarding his exact audiological
findings at various Hertz levels or of his speech recognition
scores as these matters require medical expertise which he
does not possess.
In evaluating service-connected hearing impairment,
disability ratings are derived by a mechanical application of
the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered. See Acevedo-
Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992). The schedule provides
a table (Table VI) to determine a Roman numeral designation
(I through XI) for hearing impairment. Testing for hearing
loss is conducted by a state-licensed audiologist, including
a controlled speech discrimination test (Maryland CNC).
The evaluation is based upon a combination of the percent of
speech discrimination and the puretone threshold average
which is the sum of the puretone thresholds at 1000, 2000,
3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85.
Table VII in the schedule is used to determine the percentage
evaluation by combining the Roman numeral designations for
hearing impairment of each ear, the horizontal rows
representing the ear having better hearing and the vertical
columns the ear having the poorer hearing. The percentage
evaluation is indicated where the row and column intersect.
Table VIa is used when the examiner certifies that the use of
speech discrimination test is not appropriate because of
language difficulties, inconsistent speech discrimination
scores, etc., or when indicated under the provisions of 38
C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Copies of the
pertinent tables were provided to the veteran in the
statement of the case.
When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. See 38 C.F.R. §
4.86(a). When the puretone threshold is 30 decibels or less
at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the
rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. That
numeral will then be elevated to the next higher Roman
numeral. See 38 C.F.R. § 4.86(b).
Under the rating criteria, the October 2004 examination
results constitute Level IV hearing on the right and Level II
hearing on the left. When combined, the result is a non-
compensable or 0 percent disability evaluation. On the March
2005 examination, the veteran had Level I hearing in both
ears which equates to a non-compensable or 0 percent
disability evaluation. On the January 2006 examination, the
veteran had Level II hearing in both ears which also equates
to a non-compensable or 0 percent disability evaluation.
Further, the Board finds that 38 C.F.R. § 4.86(a) is not for
application because the puretone threshold at each of the
four specified frequencies (1000, 2000, 3000, and 4000 Hertz)
is not 55 decibels or more. The Board further finds that 38
C.F.R. § 4.86(b) is not for application as the puretone
threshold is not 30 decibels or less at 1000 Hertz, and 70
decibels or more at 2000 Hertz, on any of the examinations.
The Board acknowledges the veteran's contentions regarding
his difficulty hearing, however, the audiology examinations
yielded results warranting a non-compensable rating
throughout the appeal period. This objective evidence is
more persuasive with regard to the level of disability under
the rating schedule as it specifically pertains to those
rating criteria. The veteran's representative has argued
that the testing was performed in a controlled sound
environment. However, VA regulations set forth specific
requirements for the conduct of audiology examinations used
to rate hearing loss. 38 C.F.R. § 4.85(a); see also 38
C.F.R. § 4.85(b)-(d) (2006). The representative has not
identified the way in which the VA examination failed to
comply with the regulatory requirements. Those regulations
anticipate that examinations will be conducted in a
controlled environment. 59 Fed. Reg. 17296 (Apr. 12, 1994).
They also recognize that in certain exceptional circumstances
examinations in a controlled environment would not adequately
portray the level of hearing impairment under ordinary
conditions of life. Id. For that reason, VA adopted 38
C.F.R. § 4.86 to evaluate those exceptional patterns of
hearing loss. Id. The representative has not cited any
authority for the proposition that testing in a soundproof
room or controlled sound environment is inadequate to
determine the effects of hearing loss under the ordinary
conditions of life absent an exceptional pattern of hearing
loss. In any event, the precise conduct of hearing
examinations is the province of state licensed audiologists
who possess the necessary expertise to determine how best to
conduct hearing examinations. The Board does not possess the
necessary expertise to second guess those determinations
except to ensure that the examinations are conducted in
accordance with the requirements of the regulations.
The representative also asserted that 38 C.F.R. § 3.321 is
for application. In exceptional cases where schedular
evaluations are found to be inadequate, the RO may refer a
claim to the Under Secretary for Benefits or the Director,
Compensation and Pension Service, for consideration of "an
extraschedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities." 38 C.F.R. §
3.321(b)(1). "The governing norm in these exceptional cases
is: A finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards." Id.
In this case, however, the evidence does not show that the
veteran's bilateral hearing loss has caused marked
interference with employment or has required frequent
hospitalizations. There have been no hospitalizations. The
veteran's hearing on the examinations was noncompensable.
Although he has reported that he has some interference in his
ability to communicate which he is competent and credible to
report, given the examination reports, the interference is
not marked and he has not submitted any supporting evidence
constituting marked interference. Therefore, further
development in keeping with the procedural actions outlined
in 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v.
Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
The Board is bound in its decision by application of the
rating schedule to the reported test results. The
preponderance of the evidence is against the claim for a
compensable evaluation for the veteran's hearing loss
disability. Thus, the benefit sought on appeal must be
denied.
ORDER
An initial compensable rating for bilateral hearing loss is
denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs